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March 30, 1981

Charles CULHANE and Gerald McGivern, Petitioners,
David HARRIS, Superintendent, Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: OWEN


Petitioners Charles Culhane and Gerald McGivern seek writs of habeas corpus pursuant to 28 U.S.C. ยง 2254. In 1975, a jury in Ulster County, New York found them guilty of felony murder, and each was sentenced to and is now serving an indeterminate term of twenty-five years to life. The conviction was twice affirmed, 57 A.D.2d 418, 395 N.Y.S.2d 517 (3d Dep't. 1977), aff'd, 45 N.Y.2d 757, 408 N.Y.S.2d 489, 380 N.E.2d 315 (1978), and certiorari was denied by the United States Supreme Court, Culhane v. New York, 439 U.S. 1047, 99 S. Ct. 723, 58 L. Ed. 2d 706 (1978). State remedies having been exhausted, petitioners are now properly before me.

 Petitioners had two prior trials on these charges. The first ended in a mistrial when the jury failed to agree. On the second trial they were found guilty and sentenced to death, but the New York Court of Appeals set the convictions aside because of errors in the jury selection. People v. Culhane, 33 N.Y.2d 90, 350 N.Y.S.2d 381, 305 N.E.2d 469 (1973).

 Many of the basic facts are not in dispute. On September 13, 1968, two Westchester County deputy sheriffs, Joseph Singer and William Fitzgerald, on assignment to transport the petitioners and a third prisoner, William Bowerman, from Auburn Prison to Westchester for a coram nobis hearing, were traveling down the New York State Thruway. The car was Deputy Fitzgerald's private car and had no safety screen separating the front seat from the back. The prisoners were seated in the back seat and the deputies sat in the front, taking turns driving. Each of the petitioners wore a security belt which had a simply-operated buckle in the back, and a metal ring in front through which the chain of his handcuffs passed. Bowerman's security belt, on the other hand, fastened in front with a chain which also was attached to his handcuffs. The three were not linked together. The two deputies, each right-handed, wore .38 caliber revolvers in holsters on their right hips.

 At some point while Deputy Singer was driving, Bowerman asked him to pull over to the side of the highway so that he, Bowerman, could urinate. The seating arrangement at this critical moment was as follows: Singer was driving, Deputy Fitzgerald was seated in the front passenger's seat, and, in the back seat, Culhane was behind the driver, McGivern was in the middle, and Bowerman was on the right. It is undisputed that, as Singer braked the car, an escape was attempted, shots were fired, Bowerman and Deputy Fitzgerald died and Culhane and McGivern were wounded.

 In sharp dispute, however, was whether Culhane and McGivern were participants in the abortive escape attempt. Petitioners both testified at trial *fn1" that Bowerman, the prisoner who was killed, had sliced open his security belt with a razor blade which he had concealed in his clothing, that he passed the razor blade to petitioners, silently indicating that they, too, should cut open their belts and join in his escape attempt, but that, frightened, they demurred, Culhane putting the razor blade into his jacket pocket, where the police in fact later found it. They further testified that as the car slowed down, Bowerman, his hands still cuffed but no longer bound to his waist, struck Deputy Fitzgerald over the head and grabbed Deputy Singer's gun from its holster. With Fitzgerald slumped over in the front passenger's seat and Singer disarmed, petitioners testified, Bowerman unbuckled Culhane's security belt and ordered Culhane to do the same for McGivern. At this point Fitzgerald revived and drew his gun, whereupon petitioners dove in fear to the floor of the car as Fitzgerald rose and faced Bowerman. Firing commenced, and petitioners claim they were wounded in the crossfire.

 Deputy Singer, however, testified to quite a different chain of events. He stated that as he began to pull the car over, the security belts of all three prisoners in the back seat already were open and that Culhane and Bowerman simultaneously attacked the deputies, each prisoner choking the deputy in front of him with the chains of his handcuffs and his security belt. He said that it was McGivern, not Bowerman, who grabbed his, Singer's, gun. Then, according to Singer, Fitzgerald got free, drew his revolver, and exchanged shots with McGivern, the exchange leaving Fitzgerald, McGivern, and Culhane wounded, Fitzgerald fatally. It appears the car had come to a stop on the shoulder of the road at this point, and, Singer further testified, he then retrieved his gun from McGivern and tried to hold the prisoners at bay. Culhane, however, dove into the front seat in an apparent attempt to seize Fitzgerald's revolver. Singer said he shot at and missed Culhane, but succeeded in taking possession of his dying partner's gun with his left hand while he held his own gun in his right hand. Then, Singer further testified, while he was pointing both guns at the three prisoners, Bowerman suddenly grabbed the barrel of the gun in Singer's right hand at which point Singer shot and killed him with the other gun.

 The jury, obviously accepting Deputy Singer's version of the events, found petitioners guilty.

 Petitioners attack their convictions on two grounds. The first, which they both assert, is that they were denied their rights to due process of law and compulsory process in violation of the Fifth, Sixth and Fourteenth amendments when the trial court excluded certain documentary evidence which they had offered in support of their defense. The second, asserted by McGivern alone, is that his Fifth and Fourteenth amendment rights against self-incrimination were violated when the court allowed the prosecution to cross-examine him and comment in summation to the jury on his failure to take the stand at either of the previous two trials.

 The essence of petitioner's joint claim is that only Bowerman had attempted to escape and that they were innocent victims who had not participated in the attempt. Obviously, given the radically different versions of the events, petitioners were faced with major credibility problems: they were convicted felons, charged with the killing of a peace officer, and were contradicting the testimony of the surviving peace officer who was the partner of the victim. To meet this problem, petitioners did offer some circumstantial evidence consistent with their version of the facts. For example, a physician who examined Deputy Singer later on the day of the incident testified that he could find no evidence of any injury to the deputy's throat or neck, notwithstanding the fact that Singer had testified that Culhane had choked him with his, Culhane's, handcuffs. In addition, the pathologist who performed Fitzgerald's autopsy testified that Fitzgerald also bore no marks on his throat. *fn2"

 The petitioners also sought to introduce certain documentary evidence consisting of records on Bowerman kept by the New York Department of Corrections and the state courts. These records documented Bowerman's history of escape attempts and his psychotic personality. Petitioners contended that the records constituted material support of the defense theory that the dead prisoner was prone to acts such as the one of which petitioners were accused. The trial court however, declined to permit the receipt of the records in evidence, ruling that they were incompetent, irrelevant, immaterial, and "would deprive the People of a fair trial." The Court of Appeals, over a vigorous dissent, held that the evidence was "irrelevant unless it were additionally shown that the prior escape attempts had been made in comparable circumstances, including the presence but nonparticipation of other potential escapees." People v. Culhane, supra, 45 N.Y.2d at 759, 408 N.Y.S.2d 489, 380 N.E.2d 315.

 Ordinarily, federal courts may not review state court rulings on evidence whether on a direct appeal, or in a federal habeas corpus proceeding. *fn3" Buchalter v. New York, 319 U.S. 427, 63 S. Ct. 1129, 87 L. Ed. 1492 (1943), Chesney v. Robinson, 403 F. Supp. 306 (D.Conn.1975), aff'd without opinion, 538 F.2d 308 (2d Cir. 1976), cert. denied sub nom. Robinson v. Chesney, 429 U.S. 867, 97 S. Ct. 177, 50 L. Ed. 2d 147. The question before me, however, is not merely whether the exclusion of the Bowerman records was erroneous as an evidentiary matter, but whether it violated petitioners' rights to compulsory process or deprived them of a fair trial in violation of the due process clause of the Fourteenth Amendment. Welcome v. Vincent, 549 F.2d 853, 856 (2d Cir. 1977), cert. denied sub nom. Fogg v. Welcome, 432 U.S. 911, 97 S. Ct. 2960, 53 L. Ed. 2d 1084.

 A person charged with a crime has a constitutional right to present a defense. As the Supreme Court declared in In Re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 507, 92 L. Ed. 682 (1948):

A person's right to ... an opportunity to be heard in his defense a right to his day in court (is) basic in our system of jurisprudence; and these rights include, as a ...

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